Sessions v. Morales-Santana implicates fatherhood, nonmarital families, and children’s citizenship. I focus my comment on its implications for how we think about fathers and fatherhood.

It is possible to fit this case within the mosaic of U.S. Supreme Court cases on fatherhood and try to make it all make sense. See, e.g., Stanley v. Illinois, 405 U.S. 645 (1972); Quilloin v Walcott, 434 U.S. 246 (1978); Caban v. Mohammed, 441 U.S. 380 (1979); Lehr v. Robertson, 463 U.S. 248 (1983); Michael H. v Gerald D., 491 U.S. 110 (1989); Nguyen v. INS, 533 U.S. 53 (2001); Flores v. Villar, 564 U.S. --- (2011).Those cases revolve around a differential standard for non-marital biological fathers and mothers in terms of constitutional protection for their role as parents. Mothers have full constitutional status from the birth of their child; fathers do not. These cases are built on a stereotyped foundation that assumes fathers in general, but particularly non-marital fathers, are uninvolved in the care of their children. Because of that assumption, fathers have neither responsibilities nor privileges. Statutes may confer equivalent status if they choose, but it is not constitutionally required. Non-marital fathers gain constitutional status and protection only if they have done something more than simply have a biological connection to a child, the so-called “biology plus” standard.

In the immigration setting, based on Nguyen v INS, this has made it permissible for the federal government to differentiate between citizen mothers and citizen fathers in terms of conferring citizenship on their children. In Nguyen, the requirement that fathers legitimate their child, establish paternity, or have a paternity order judicially entered, prior to the child’s eighteenth birthday, was justified based on the differential circumstances of the parent’s knowledge of the child’s birth and therefore the opportunity to establish a relationship deemed important to transfer of citizenship. The rationale for the case was founded in stereotypic language that assumed fathers heedlessly create children (or are misled into doing so by conniving mothers), and are unlikely to engage in their care even if they have knowledge of their existence. Requiring a father to do something, then, is necessary to counter this default assumption of how they will behave, and “equalize” them as parents to non-marital mothers. Interestingly, despite the articulated state interest in the relationship between the citizen father and the child, no actual relationship is required. Ironically, of course, the case involved a citizen father who was involved in raising his child as a single parent father. Nevertheless, not only did the Court accept this differentiation but also applied a relaxed standard of review closer to the lowest standard of equal protection analysis, rather than the heightened scrutiny of the Court’s sex discrimination cases.

The issue in Morales-Santana allows the Court to bypass this thorny ground of its jurisprudence on fathers, and Justice Ginsburg's decision is careful to make this distinction. The case is focused on differential periods of residence in the United States in order to confer citizenship on one’s child. The comparison between fathers and mothers in the case has to do with the parents’ strength of attachment to their country. Mothers establish that attachment sufficiently in a year, while fathers need 10 years. The case revolves around this issue of the timing necessary to attain the status to confer citizenship on one’s children. Unlike Nguyen, it has nothing to do with assumptions about caregiving or parent-child relationships as a foundation for conferring essential citizenship values. Nevertheless, as the opinion acknowledges. the differential standard implicitly takes its cue from the view that non-marital children are the child of the mother, or that men might potentially generate a host of children because of presumed sexual activity and irresponsibility, so therefore a stricter standard is justifiable. So on the one hand, a decision in this case, unfortunately, does not herald an opportunity to revisit the case law about fathers that is steeped in stereotypes; on the other hand, it seems unmistakable that stereotypes about men and fatherhood pervade the case.

Differentiating between fathers and mothers is an issue that deserves reexamination. The biology plus standard both asks too much and asks too little. It asks too much because it requires something more than biological connection to recognize fathers as equal constitutional parents after birth. The biological link (and perhaps other non-biological links, like intent and social fatherhood) should be sufficient to trigger procedural protection to notice and an opportunity to be heard, and the opportunity to qualify for substantive rights. Because substantive rights must be balanced against the rights of the mother and the rights of the child, typically addressed by the best interests standard, this does not mean automatic substantive rights. Biology alone, however, should be sufficient for this triggering function to notice and an opportunity to be heard.

At the same time, the biology plus standard asks for too little. Grounded in a time when gender roles imagined a breadwinner, economic father uninvolved in the social care of his children, very little is represented in the cases as satisfying the “plus” standard. Indeed, no meaningful discussion of the standard has occurred. We should ask that fathers meet the same high standard of care that is expected of mothers.

In Morales Santana, a standard of gender neutrality from birth forward would mean equal privileges between fathers and mothers to confer citizenship on their children. Whatever standard is applied in addition to genetic connection should be applied to both mothers and fathers.

Morales Santana may not be the vehicle to address this the broader issue of fathers’ rights, but it reminds us that these issues remain and undermine efforts to equalize parenting for mothers and fathers, to engage fathers in a more meaningful standard of care, and to reorient masculinities more generally. The opinion's strong statement of gender equality may yet be helpful in the future to move toward that end, to the benefit of fathers, mothers, and most importantly, children.

This blog is part of our Scholarly Voices symposium on Sessions v. Morales-Santana. The first entry, Sessions v. Morales: Two Cheers for Equality, is here. For Deborah Brake's insightful analysis of the remedial issue in the case, look here and here. Rachel Rosenbloom's expert analysis from an immigration perspective is here.